103 U.S.

739
103 U.S. 739
26 L.Ed. 456

GRINNELL
v.
RAILROAD COMPANY.
October Term, 1880

ERROR to the SupremeCo urt of the State of Iowa.

The facts are stated in the opinion of the court.
Mr. Saul S. Henkle and Mr. Johe S. Hauke for the plaintiffs in error.
Mr. Thomas S. Withrow for the defendant in error.
MR. JUSTICE MILLER delivered the opinion of the court.

Actions in the nature of ejectment were brought by the Chieago, Rock Island,
and Pacific Railroad Company against numerous persons in different courts of
the State of Iowa, and heard and decided together by stipulation on appeals to
the Supreme Court, where the judgments of the lower courts in favor of the
plaintiff were affirmed. The defendants sued out this writ of error.

The plaintiff asserted title under the act of Congress of May 15, 1856, c. 28 (11
Stat. 9), granting lands to the State of Iowa for railroad purposes; and the
counsel of the plaintiffs in error correctly states in his brief that the only
question presented by the record is, whether the railroad company has under
that grant acquired title to any lands within the old fifteen-mile limit of the
Mississippi and Missouri Railroad Company, certified to the State under the
grant by the Department of the Interior for the benefit of that company, but
which were left outside of the new twenty-mile limit by a change of location of
the old line, made by the present company under the act of Congress of June 2,
1864, c. 103 (13 id. 95), amendatory of that act.

The material facts on which the decision of this question depends may be thus
succinctly stated: By the first act, Congress made a grant to the State of Iowa

for the purpose of aiding in the construction of four railroads across the State
from points on the Mississippi River to points on the Missouri River. One of
these was a road from Davenport to Council Bluffs. The grant was of every
alternate section of land designated by odd numbers, for six sections in width,
on each side of said roads; and in case it should appear that the United States
had, when the lines or routes of said roads were definitely fixed, sold any
sections or parts of sections granted as aforesaid, or the right of pre-emption
had attached to the same, then the State by its agent or agents might select other
odd sections in lieu of those thus deficient, within a limit of fifteen miles on
each side of said roads.
4

The State of Iowa, by an act of its legislature approved July 14, 1856, granted
to the Mississippi and Missouri Railroad Company the lands which were by the
act of Congress appropriated to the construction of the road from Davenport to
Council Bluffs. That company accepted the grant, and on the eleventh day of
September, 1856, filed in the General Land-Office at Washington a map
showing the route which it had adopted for its road, some unimportant
corrections of which were made by another map filed April 1, 1857.

On the 4th of September, 1858, the agent of the company and the State reported
to the General Land-Office the selection of lands in lieu of those which had
been sold or to which the right of pre-emption had attached, and on the 27th of
December, 1858, the lands thus selected, and those which were in place, were
certified to the State by the Commissioner of the General Land-Office. These
lands in place and those selected and certified to the State under the act of 1856
include all the lands in controversy in this suit.

By the act of June 2, 1864, Congress authorized a change of location of the

uncompleted part of this road, so as to secure a better and more expeditious line
for connection with the Iowa branch of the Union Pacific Railroad; and the
plaintiff below, which had succeeded to all the rights of the Mississippi and
Missouri Railroad Company, availed itself of the privilege thus conferred, and
so changed the route as to place it at some points south of the fifteen-mile limits
of the grant, as ascertained by the first location, and the road was completed on
this route to Council Bluffs in 1869. After all this, the plaintiffs in error settled
upon the lands in controversy, which were within the limits of the locatio m ade
in 1856, and without the twenty-mile limits of the amendatory act of 1864,
which will be presently noticed, and proceeded by the appropriate steps to
assert rights under the homestead and pre-emption laws of the United States.
The Land Department refused to recognize their right to the lands, but being in
possession, and sued therefor by the railroad company, they say that the
company has no title, because it lost whatever right it had to the lands by the

change of the location, and because locating the road as now completed does
not bring these lands within the limit of either the original or the amendatory
act.
7

Two inquiries are thus suggested, namely: Had the railroad company acquired
a title or a vested right to the lands in controversy prior to the act of 1864, and
to the change of location? and, if it had, what was the effect of that change on
its right to the lands left by the change outside of the limits prescribed by both
acts?

The grant under the act of 1856 was, as has been often said, a grant in
preesenti, and though exactly what this means has been the bubject of much
controversy, we think its ascertainment is not difficult. The only doubtful
element of the problem is the location of the road, which, by the terms of these
grants, is necessary to identify the sections granted on each side of it.
Whenever that is done so that a surveyor or the officers of the Land Department
can protract the line of the route on the maps of the public lands within the
limit of the grants, the identity of the lands granted is mathematically
ascertained, and the title relates back to the date of the grant.

So far as lands are found in place when this is done, not coming within the
exceptions as sold or held under pre-emption, the title, or at least the right to
this land in place, is at once vested in the State or in the company to which the
State has granted it, and the means of ascertaining precisely what lands have
passed by the grant is to be found in the map of the line of the road, which is
filed in the General Land-Office under provisions of the statute. As regards the
lands to be selected in lieu of those lost by sale or otherwise, it may be that no
valid right accrues to any particular section or part of a section until the
selection is made and reported to the land-office, and possibly not then until the
selection is approved by the proper officer.

10

None of these difficulties arise in the present case. The location was made and
the map filed in the land-office, the selection of lieu lands was made and
approved, and the entire list regularly certified to the State of Lowa, as early as
December, 1858, and with this certificate the last act of the United States which
could in any event be held necessary to passing the title was performed, and
either the State of Lowa or the railroad companyit is immaterial which for
the purposes of this suit had become invested with the full legal title to the
lands so certified.

11

In this condition of affairs the Mississippi and Missouri Railroad Company

executed, to obtain money to build its road, a mortgage of its road and
franchises, which also included the lands granted by Congress to the State and
by the State to that company. The road commenced at Davenport, on the
Missouri, and was constructed westwardly one hundred and thirty miled when
the act of 1864 was passed. In 1866 the mortgage was foreclosed, and the
Chicago, Rock Island, and Pacific Railroad Company, under sale at the
foreclosure proceeding, and by subsequent consolidation, became the owner of
the road, the franchises, and the lands of the former company.
12

The entire legal title, therefore, to their land had passed, for valuable
consideration, to this company.

13

Did their construction of the road on the new line annul or defeat, without
further action on the part of the United States, the title thus vested? It would
have been competent for Congress to have made it a condition of the change of
location, that the lands within the six-mile or the fifteen-mile limit of the old
line, and not within the twenty-mile limit of the new line, should revert to the
United States, so far as the title of the company was concerned. But it did not
make any such condition. If no law had been passed authorizing the change of
route, it is possible the government might have reclaimed these lands as
forfeited by reason of the change, to which it had not consented. But Congress
did consent to the change without any declaration affecting the title already
vested in the company.

14

The second section of the act of 1864 provided for a grant of land on each side
of the new location, and for lieu lands when those could not be found to an
amount equal to that granted by the original act of 1856, and it extended the
limit for selecting lieu lands to twenty instead of fifteen miles.

15

It is argued that the lands thus granted were intended as a substitute for those
accruing to the company under the first location and that the latter necessarily
reverted to the grantor; that it was the policy of the government that the lands
granted should be alongside of the road, and that those retained by the
government should thereby be enhanced in value. We are not prepared to deny
that if the railroad company had accepted or received lands under the act of
1864, and the case was unembarrassed by the rights of subsequent purchasers
or mortgagees, the United States could, by a judicial proceeding, enforce the
principle that an exchange of lands was intended.

16

But this would arise from no express language of the act of Congress, or
agreement with the company, but as a just and proper inference from the whole

transaction.
17

There is, however, no evidence that the company ever received any land under
the act of 1864, or asserted a claim thereto. It appears affirmatively that it never
filed in the General Land-Office a map of its new route until 1870, a year after
the road was completed; and it is fair to presume that if it intended to assert a
claim to land under the changed location, it would have filed its map when the
change was made or determined on. We do not think the act can be construed to
forfeit the lands to which they had title when they claimed none under the act
of 1864.

18

Another point equally fatal to the plaintiffs in error is, that the assertion of a
right by the United States to the lands in controversy was wholly a matter
between the government and the railroad company, or its grantors. The legal
title remains where it was placed before the act of 1864. If the government
desires to be reinvested with it, it must be done by some judicial proceeding, or
by some act of the government asserting its right. It does not lie in the mouth of
every one who chooses to settle on these lands to set up a title which the
government itself can only assert by some direct proceeding.

19

These plaintiffs had no right to stir up a litigation which the parties interested
did not desire to be started. It might be otherwise if the legal title was in the
government. Then the land would be subject to homestead or pre-emption
rights. But the legal title is not in the government; and as we have already
shown, the equity is more than doubtful. Schulenberg v. Harriman, 21 Wall.
44; Tucker v. Ferguson, 22 id. 527.

20

Judgment affirmed.

21

MR. JUSTICE BRADLEY dissented.